Inside the Star

Supreme Court to decide if ‘motive’ matters in anti-terror law

Canada’s constitutional guarantees of free speech, religious freedom, and a citizen’s right to remain in the country are on trial at the country’s top court in a series of far-reaching challenges to Ottawa’s extradition and anti-terror laws

OTTAWA—Canada’s constitutional guarantees of free speech, religious freedom, and a citizen’s right to remain in the country are on trial at the country’s top court in a series of far-reaching challenges to Ottawa’s extradition and anti-terror laws.

Seven Supreme Court of Canada judges hearing a trio of terrorism appeals were urged Monday to “moderate the tenor of the times” and strike down a clause that declares “terrorist” activity to be any criminal act or facilitation of it that is driven by a “religious, political or ideological purpose.”

They were also urged to overturn what lawyers said were over-zealous extradition orders against Canadian citizens to face terrorism charges in the U.S. that could have been tried here.

Lawyer Lawrence Greenspon, representing Momin Khawaja, the first Canadian convicted under the post-9/11 law for participating in the 2004 London fertilizer bomb plot, says the “motive” clause that underlies the definition of terrorism goes too far. It punishes citizens who might express support for, but who don’t actively or knowingly “facilitate” actual terrorist activity, he said.

Khawaja, Greenspon argued, had no knowledge or intention of participating in the British plot, and wanted only to help “jihad” in Afghanistan or Iraq, where a legitimate armed conflict under international law was underway. Initially, Khawaja won his fight to strike the “motive” aspect out of the definition of terrorism at his trial, but was convicted of several offences anyway, and sentenced in 2009 to 10 years in jail.

His challenge was joined by lawyers for Suresh Sriskandarajah and Piratheepan Nadarajah, two suspected Tamil Tiger supporters ordered extradited to the U.S. to face trial for helping the LTTE, a designated terrorist group. In the first case, the charges include laundering money and helping to procure plans for a submarine or warship design, and in the other, seeking to buy a surface-to-air missile from an undercover agent.

Federal justice lawyers argued it doesn’t matter whether one’s “participation” or facilitation of a specific terrorist act is successful or even whether an offender knows of the broader plans of a terrorist group.

He said it was up to Parliament to decide how to respond to a global threat, and lawmakers in the post 9/11 era drew a constitutional and useful distinction between simple criminality and terrorist activity.

Judges grilled all sides about how and where to draw the line to protect Charter rights and society, and about holes in their “logic.”

When defence lawyers argued expressions of violent intent are not the same as actual violence, and said there’s a higher burden on the Crown to show immediacy of a threat, the likelihood it would be carried out, the possibility of harm, and the intent of the person behind it, Chief Justice Beverley McLachlin challenged their “logic.”

McLachlin said threats of violence, even though they are exercises of free speech, might be considered in the same vein as violence.

“The whole exercise is to say, ‘We’re going to make these people afraid, they don’t know what’s coming down the track, therefore governments and populations will respond in a certain way.’ So is it logical that we would draw this bright line between threats that are immediately going to be carried out and other threats in the context of terrorism?”

Justice Marshall Rothstein said law was “drafted fairly carefully” so that it didn’t catch innocent acts of expression such as an interpreter who merely translated terrorist propaganda tracts with no intention of furthering terrorist activity.

Yet when Crown lawyers claimed there is nothing wrong with the law, Justice Louis Lebel questioned its reach and whether it could catch someone who transfers a book that “expresses controversial views in our society?”

“You’re telling me essentially you do not know what that kind of law could catch,” Lebel said.

The federal lawyer, Michaelson, shot back, “If the book contains the plans on how to build a bomb and it’s a bomb-making manual, that could be highly pertinent information. . . . Yes, sometimes exchanging ideas can give rise to criminal liability.”

The United Kingdom, Australia, New Zealand and South Africa all include “motive clauses” in their anti-terror laws to reflect what governments “think terrorism is all about.” He dismissed suggestions of a “chilling effect” on minority or religious groups, saying there is no evidence of any chill.

The extradition of Canadian citizens to face terrorism charges in states with a tougher approach also came under the microscope. Lawyer John Norris argued Canada should not “outsource the prosecution” of terrorism offences if it doesn’t have the evidence, the resources to prosecute, or if it believes the U.S. or another country moved first and “they deserve the prize.”

In the end, the seven judges reserved their decision on the three appeals, but lawyer Kent Roach, an expert in Canada’s anti-terror laws who argued on behalf of the British Columbia Civil Liberties Association, told them they now have “the opportunity to affirm the importance of fundamental freedoms even if the temper of the times means that certain religious views are feared and loathed by the vast majority.”

More on thestar.com

We value respectful and thoughtful discussion. Readers are encouraged to flag comments that fail to meet the standards outlined in our
Community Code of Conduct.
For further information, including our legal guidelines, please see our full website
Terms and Conditions.